Citation Nr: 0829743
Decision Date: 09/03/08 Archive Date: 09/10/08
DOCKET NO. 05-14 742 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to a total disability rating for compensation
based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
E. Woodward Deutsch, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1972 to August
1976.
This matter comes before the Board of Veterans' Appeals
(Board) from a June 2004 rating decision of a Department of
Veterans Affairs (VA) Regional Office (RO) that denied the
veteran's claim for a TDIU rating.
The veteran requested that the opportunity to testify at a
Board hearing; however, after being notified of the time,
date and location of the hearing he failed to report and has
not requested that the proceeding be rescheduled. In
addition, the notice letter was not returned as
underliverable. Accordingly, the veteran's request for a
Travel Board hearing is considered to be withdrawn. 38
C.F.R. § 20.704(d) (2007).
FINDINGS OF FACT
1. The veteran is service-connected for degenerative disc
disease of the lumbar spine, evaluated as 40 percent
disabling. He also has noncompensable ratings for tinea
pedis and status-post wart removal on the right hand, right
knee and back of head. His combined evaluation is 40
percent.
2. The veteran's service-connected disabilities are not
shown to be of such severity so as to preclude substantially
gainful employment.
CONCLUSION OF LAW
The criteria for the assignment of a TDIU rating have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 3.340, 3.341, 4.1-4.14, 4.16 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist the Appellant
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159
(2007). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; and
(3) inform the claimant about the information and evidence
the claimant is expected to provide. Pelegrini v. Principi,
18 Vet. App. 112 (2004). This notice must be provided prior
to an initial unfavorable decision on a claim by the agency
of original jurisdiction (AOJ). Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
In addition, the notice requirements apply to all five
elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006). Further, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Notice errors are presumed prejudicial unless VA shows that
the error did not affect the essential fairness of the
adjudication. To overcome the burden of prejudicial error,
VA must show (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or, (3) that a benefit could not have been
awarded as a matter of law. Sanders v. Nicholson, 487 F.3d
881 (2007).
Here, the RO sent correspondence in September 2003, March
2004, and March 2006 that discussed specific evidence, the
particular legal requirements applicable to the claim, the
evidence considered, the pertinent laws and regulations, and
the reasons for the decisions. VA made all efforts to notify
and to assist the veteran with regard to the evidence
obtained, the evidence needed, the responsibilities of the
parties in obtaining the evidence, and the general notice of
the need for any evidence in the veteran's possession. The
Board finds that any defect with regard to the timing or
content of the notice to the veteran is harmless because of
the thorough and informative notices provided throughout the
adjudication and because the veteran had a meaningful
opportunity to participate effectively in the processing of
the claim with an adjudication of the claim by the RO
subsequent to receipt of the required notice. There has been
no prejudice to the veteran, and any defect in the timing or
content of the notices has not affected the fairness of the
adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006) (specifically declining to address harmless error
doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473
(2006). Thus, VA has satisfied its duty to notify the
veteran and satisfied the duty prior to the final
adjudication in the December 2007 supplemental statement of
the case.
Finally, with respect to VA's duty to assist, the Board notes
that pertinent records from relevant sources identified by
the veteran, and for which he authorized VA to request, have
been obtained. 38 U.S.C.A. § 5103A. VA has associated with
the claims folder his service treatment records and post-
service treatment records. The veteran has also been
afforded formal VA examinations in October 2003 and November
2007 to evaluate whether his service-connected disabilities
prohibited him from attaining or maintaining substantially
gainful employment, thereby warranting entitlement to a TDIU
rating.
Furthermore, neither the veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional available evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance to the veteran is required to
fulfill VA's duty to assist the veteran in the development of
the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15
Vet. App. 143 (2001); see also Quartuccio v. Principi, 16
Vet. App. 183 (2002).
TDIU Rating
In order to establish entitlement to TDIU due to service-
connected disabilities, there must be impairment so severe
that it is impossible for the average person to secure or
follow a substantially gainful occupation. See 38 U.S.C.A. §
1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a
determination, the central inquiry is whether the veteran's
service connected disabilities alone are of sufficient
severity to produce unemployability. Hatlestad v. Brown, 5
Vet. App. 524, 529 (1993). Consideration may be given to the
veteran's level of education, special training, and previous
work experience in arriving at a conclusion, but not to his
age or to the impairment caused by nonservice-connected
disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v.
Brown, 4 Vet. App. 361 (1993).
The regulatory scheme for a TDIU provides both objective and
subjective criteria. Hatlestad, 5 Vet. App. 524, 529 (1993);
VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992).
The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2),
provide for a total rating when there is a single disability
or a combination of disabilities that results in a 100
percent schedular evaluation. Subjective criteria, set forth
at 38 C.F.R. § 4.16(a), provide for a TDIU when, due to
service-connected disability, a veteran is unable to secure
or follow a substantially gainful occupation, and has a
single disability rated 60 percent or more, or at least one
disability rated 40 percent or more with additional
disability sufficient to bring the combined evaluation to 70
percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional
circumstances, where the veteran does not meet the
aforementioned percentage requirements, a total rating may
nonetheless be assigned upon a showing that the individual is
unable to obtain or retain substantially gainful employment
as a result of service-connected disability. 38 C.F.R. §
4.16(b).
Here, the veteran is service connected for degenerative disc
disease of the lumbar spine, evaluated as 40 percent
disabling. He also has noncompensable ratings for tinea
pedis and status-post wart removal on the right hand, right
knee and back of head. His combined evaluation is 40
percent. The veteran therefore does not meet the percentage
criteria laid out in 38 C.F.R. § 4.16(a).
However, it is the established policy of VA that all veterans
who are unable to secure and follow a substantially gainful
occupation by reason of service-connected disabilities shall
be rated totally disabled. 38 C.F.R. § 4.16(b) (2007).
Rating boards should refer to the Director of the
Compensation and Pension Service for extra-schedular
consideration all cases of veterans who are unemployable by
reason of service-connected disabilities but who fail to meet
the percentage requirements set forth in 38 C.F.R. § 4.16(a).
The veteran's service-connected disabilities, employment
history, educational and vocational attainment, and all other
factors having a bearing on the issue must be addressed. 38
C.F.R. § 4.16(b). The rating board did not refer this case
for extra-schedular consideration.
The Board, however, concludes that while the veteran asserts
that he is unable to work as a result of his service-
connected disabilities, the veteran is not unemployable due
to the aggregate impact of his service-connected
disabilities.
The record reflects that the veteran was last employed on a
fulltime basis as a construction worker in November 2002. He
thereafter was employed in a series of temporary staffing
jobs, the last of which ended in approximately September
2003. Although the veteran indicated in his September 2003
TDIU claim that he was unable to work because of an accident
in service, he acknowledged that he had not left his prior
employment because of any service-connected disability.
Further, he stated that he neither received nor expected to
receive any disability or worker's compensation benefits in
connection with any service- or non-service connected
disability. The veteran also reported that he had not
attempted to gain employment since he became too disabled to
work.
The veteran underwent VA examinations in October 2003 and
November 2007 in an effort to address whether his service-
connected disabilities prohibited from attaining or
maintaining substantially gainful employment.
At the time of the October 2003 examination, the veteran's
claims file, including all pertinent medical records, were
not available for review. The veteran reported that he had
last worked "about six or seven weeks ago," and stated that
temporary agencies would no longer hire him because of his
back problems. The veteran did not complain that his other
noncompensably service-connected disabilities (tinea pedis
and status post-wart removal on the right hand, right knee,
and back of head) had any impact on his employability. Nor
did he comment on the effects of any non-service connected
disabilities on his job prospects.
The VA examiner noted that the veteran had undergone lumbar
surgery in 1975 and had then been relatively asymptomatic for
a number of years. The veteran reported that his back pain
had become more severe in the last several years, eventually
requiring hospitalization at a VA Medical Center for a two-
week period. Parenthetically, the Board notes that while the
veteran told the October 2003 VA examiner that his
hospitalization occurred "about five years ago," the claims
file indicates that he was hospitalized for her lumbar spine
disability in September 1995. Those hospitalization records,
as noted above, were not available to the VA examiner at the
time of the examination.
The veteran also told the October 2003 VA examiner that since
the time of his hospitalization, he had experienced
occasional recurrent episodes of incapacitating back pain,
the most recent of which took place one month earlier. He
further stated that, in addition to those occasional
incapacitating episodes, he had experienced recurrent back
and bilateral leg pain which was exacerbated by prolonged
periods of sitting, standing, walking, as well as bending and
heavy lifting.
Physical examination revealed a normal gait and an ability to
stand erect, with no muscle spasms or tenderness noted.
Range of motion testing showed 70 degrees forward flexion,
with pain, 30 degrees extension, with slight pain, and 35
degrees right and left bending, with slight pain.
Neurological examination revealed an absent left ankle jerk
and pain on supine straight leg raising, but was otherwise
negative for any abnormalities in the lower extremities,
bilaterally. With respect to the DeLuca provisions, it was
noted that while flare ups of back pain could conceivably
limit the veteran's ability to function, it was not feasible
to express any of this in terms of limitation of motion. See
DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995); 38 C.F.R.
§§ 4.40, 4.45. Finally, X-rays taken of the veteran's lumbar
spine showed degenerative disc space narrowing at the L4-L5
and L5-S1 vertebrae.
As to the veteran's present ability to attain and maintain
substantially gainful employment, the VA examiner determined
that the veteran would have difficulty obtaining and
maintaining gainful employment due to his degenerative disc
disease of the lumbar spine. The examiner based his
assessment on the veteran's reports of incapacitating
episodes of back pain as well as his statement that temporary
staffing agencies would no longer hire him because of his
back problems.
On VA examination in November 2007, the veteran reported
flare-ups of low back pain that occurred roughly once per
month and lasted up to two days, during which time he relied
on crutches to get around. Those flare-ups, the veteran
maintained, were precipitated by prolonged standing, driving,
bending and twisting and were treatable with rest and
medication. Additionally, the veteran reported chronic low
back pain radiating down to his knees, bilaterally. He noted
that his back pain affected him from obtaining employment,
adding that he had been unemployed for four of the last five
years. The veteran further stated that his back pain
impacted his daily living activities to the extent that it
took him longer to get up and get dressed in the morning.
Nevertheless, the veteran denied that his back pain was
productive of any incapacitating episodes requiring bed rest,
hospitalization, or emergency room visits.
With respect to his service-connected tibea pedis and status
post-wart removal, the veteran stated that he had not
received medical treatment for these conditions since leaving
the military. He added that those service-connected
disabilities did not result in any incapacitating episodes or
otherwise interfere with his ability to work or perform daily
living activities.
Additionally, the veteran reported that his service-connected
disabilities did not prevent him from operating a personal
vehicle or managing his own financial interests. It was
further noted that he had a college degree in religion and
that his hobbies included playing the guitar and singing.
On physical examination, the veteran was shown to have a
normal gait and an ability to stand erect, with no muscle
spasms or tenderness noted. Range of motion testing showed
60 degrees forward flexion, with pain, 20 degrees extension,
with pain, and 45 degrees right and left bending, with pain
at the extremes. Neurological examination of the lower
extremities revealed a positive right straight leg raising
and the inability to do heel/toe walks secondary to low back
pain, but was otherwise unremarkable. Additionally, as had
been the case in October 2003 with respect to the DeLuca
provisions, the November 2007 VA examiner determined that it
was not feasible to quantify any limitation of function due
to repetitive use or flare-ups of back pain without resorting
to speculation. Finally, X-rays of the lumbar spine revealed
degenerative disc space narrowing at L4-L5 and L5-S1, as well
as increased opacity in the left iliac bone, which was not
shown on radiographic examination in October 2003.
Based upon the veteran's statements, the physical
examination, and a review of the claims folder, the November
2007 VA examiner determined that the veteran's service-
connected disabilities were less likely than not to prohibit
him from obtaining gainful employment. In support of his
opinion, the examiner noted that the veteran was still able
to perform his daily living activities, and that his
disabilities were not shown to incapacitate him or to require
hospitalization or emergency room visits. Those findings,
combined with the veteran's relatively advanced degree of
education and his continued ability to operate a personal
vehicle, manage his financial affairs, and engage in hobbies
such as guitar playing and singing, demonstrated that he
remained a viable candidate for sedentary, non-physical type
of work, in the examiner's view.
Parenthetically, the Board notes that during the November
2007 VA examination, the veteran reported that he also
suffered from the following disabilities for which he is not
service connected: diabetes mellitus, hypertension, coronary
artery disease, and transient ischemic attack (TIA).
Although those non-service connected disabilities are beyond
the scope of a TDIU rating under 38 C.F.R. § 4.16(b), the
Board notes that the VA examiner considered them as well as
the veteran's service-connected disabilities in assessing
whether the veteran was capable of securing and following a
substantially gainful occupation. The examiner concluded
that, even taking both his service-connected and non-service
connected disabilities into account, the veteran was still
more likely than not capable of attaining or maintaining
substantially gainful employment.
An evaluation of the probative value of medical opinion
evidence is based on the medical expert's personal
examination of the patient, the examiner's knowledge and
skill in analyzing the data, and the medical conclusion
reached. The credibility and weight to be attached to such
opinions are within the province of the Board as
adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993).
Greater weight may be placed on one physician's opinion over
another depending on factors such as reasoning employed by
the physicians and whether or not and the extent to which
they reviewed prior clinical records and other evidence.
Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative
value of a medical opinion is generally based on the scope of
the examination or review, as well as the relative merits of
the expert's qualifications and analytical findings, and the
probative weight of a medical opinion may be reduced if the
examiner fails to explain the basis for an opinion. Sklar v.
Brown, 5 Vet. App. 140 (1993).
The October 2003 VA medical examiner concluded that the
veteran would have difficulty obtaining and maintaining
gainful employment on account of his service-connected
degenerative disc disease of the lumbar spine. However, that
assessment was contradicted by the November 2007 VA
psychiatric examiner's opinion that the veteran's back
disability, together with his other service-connected and
non-service connected disabilities, were less likely than not
to prohibit him from obtaining gainful employment.
Weighing the opinions submitted by these two examiners, the
Board finds that the November 2007 VA examiner's opinion is
more persuasive because it was based upon a thorough
examination of the veteran and the claims folder and because
a detailed rationale was provided for the opinion. In
contrast, the October 2003 VA medical examiner indicated that
he did not review the veteran's medical records or other
pertinent evidence in his claims file. Moreover, that
examiner's findings regarding the veteran's inability to work
appeared to be largely based upon the latter's own statements
about his service-connected back problems and their impact on
his employment prospects. In placing greater weight on the
November 2007 VA examiner's opinion, the Board also finds it
significant that that opinion is more current than the
opinion of the October 2003 examiner, and that the November
2007 examiner considered the earlier opinion in determining
that the veteran's service- and non-service connected
disabilities were less likely than not to preclude him from
obtaining sedentary, non-physical type of employment.
After a thorough review of the record, the Board finds that
the functional limitations imposed by the veteran's service-
connected disabilities do not preclude his performance of
substantially gainful employment. While the Board
acknowledges that the veteran's degenerative disc disease of
the lumbar spine is productive of moderate to severe
impairment, the November 2007 examiner found that neither it
nor the veteran's other service-connected disabilities would
preclude his ability to obtain gainful employment. Indeed,
the November 2007 examiner even opined that neither the
veteran's service-connected nor his non-service connected
disabilities rendered him incapable of obtaining sedentary,
non-physical type of work.
For the reasons noted above, the Board finds this opinion to
be more probative than the prior October 2003 VA examiner's
opinion, and there is no other competent evidence of record
demonstrating that the veteran's service-connected
disabilities would totally preclude him from being employed.
Moreover, there is no indication that the veteran, a college
graduate, has been unable to obtain employment in a position
which did not require prolonged standing, bending, twisting,
or other exertion on his lower back. Nor is there any
evidence that he is unqualified for employment in a position
which does not require him to be mobile. In sum, there is no
competent evidence of record showing that the veteran is
unable to maintain substantially gainful employment due to
the severity of his degenerative service-connected
disabilities.
The Board is sympathetic to the veteran's assertions
regarding ongoing lower back problems, including difficulties
with mobility. Those problems, however, are reflected in his
current 40 percent disability rating for degenerative disc
disease of the lumbar spine. See Van Hoose v. Brown, 4 Vet.
App. 361, 363 (1993). Moreover, while his lumbar spine
disease and other service-connected disabilities may cause
some economic inadaptability, this also is taken into account
in the assigned evaluation. In this case, there is no
showing of total individual unemployability based solely on
these disabilities.
Based upon the foregoing, the Board concludes that the
preponderance of the evidence does not demonstrate that the
veteran's service-connected disabilities alone, when
considered in association with his educational attainment and
occupational background, render him unable to secure or
follow a substantially gainful occupation. Although the
evidence of record indicates that the veteran has not been
employed on a full-time basis since November 2002, the
preponderance of the evidence is against finding that his
service-connected disabilities have resulted in his
unemployability.
The veteran asserts that he is unemployable due to his
service-connected disabilities, but there is no competent
evidence of record that those disabilities preclude him from
gainful employment. The Board therefore concludes that this
case presents no unusual or exceptional circumstances that
would justify a referral of the total rating claim to the
Director of the VA Compensation and Pension Service for
extra-schedular consideration. In the absence of any
evidence of unusual or exceptional circumstances beyond what
is contemplated by the assigned combined disability
evaluation of 40 percent, the preponderance of the evidence
is against his claim. Accordingly, a total disability rating
based upon individual unemployability due to service-
connected disability under the provisions of 38 C.F.R. §
4.16(b) is not warranted.
ORDER
Entitlement to a TDIU rating is denied.
____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs